Case Nos: IL-2023-000080 and IL-2024-000038 - [2025] EWHC 2561 (Ch)

‘[54] However, it must be stressed that the protection of the sui generis [database] right concerns only acts of extraction and re-utilisation as defined in Art.7(2) of the directive. That protection does not, on the other hand, cover consultation of the database.

[55] Of course, the maker of a database can reserve exclusive access to his database to himself or reserve access to specific people. However, if he himself makes the contents of his database or a part of it accessible to the public, his sui generis right does not allow him to prevent third parties from consulting that base.’

‘[60] In the light of the above, the answer to the question referred must be that that the transfer of material from a protected database to another database following an on-screen consultation of the first database and an individual assessment of the material contained in that first database is capable of constituting an “extraction”, within the meaning of Art.7 of Directive 96/9 , to the extent that—which it is for the referring court to ascertain—that operation amounts to the transfer of a substantial part, evaluated qualitatively or quantitatively, of the contents of the protected database, or to transfers of insubstantial parts which, by their repeated or systematic nature, would have resulted in the reconstruction of a substantial part of those contents.’

‘[276] In the end I have decided that what 77m have done is not consultation. The reasons are these. What is apt to confuse the issue is that in economic terms what OS is trying to stop is Matrix, but Matrix does not contain the relevant contents (the centroids). Matrix is not the "other medium". The fact that the process which involved the putative act of extraction by 77m of the centroids was ultimately something which led to another database being produced, is irrelevant to the analysis. If what 77m did is an act of extraction that must be true whatever it is 77m went on to do having used the centroids for its purposes and discarded them. This is I think what the court is referring to at [47] of BHB v William Hill. That case also used the term appropriation to refer to extraction, which has been picked up later (see [51]). Moreover while re-utilisation involves making available to the public, extraction does not have to.

[277] There may be a simple answer, as follows. In Directmedia at [60] the court refers to on screen consultation. It may be that what the CJEU is talking about there is that a situation in which a person reads the data on a computer screen and does nothing else is consultation. It is not extraction because the only possible "other medium" into which the contents have been transferred is the individual's brain and that is not a relevant sort of medium. If things are written down and then it is done on a large scale then there may be extraction but the act of on screen consultation is not infringing. If that is what the CJEU means then clearly 77m does not do this sort of consultation. However I have misgivings about this way of reading the cases. It is not clear that that is what is meant and, for example, I do not see why consultation by a user themselves sitting by a terminal should be exempt while consultation by a user accessing data through their own device like a mobile phone might not be.

[278] 77m is using the centroids from the original database for information purposes in a sense (to draw an inference) and that chimes with the references to consultation in Directmedia and Innoweb . Moreover 77m was given access to the database albeit what 77m then did was not licensed. However what I think deprives 77m's activity of the character of mere consultation is its scale. When a member of the public, or a commercial user, wishes to consult the database to learn something about a particular entry or to learn something about particular entries, they consult the database. By contrast someone who takes all or a substantial part of all the contents, and transfers them into another medium so that they can use them, is appropriating to themselves a substantial part of the investment which went into creating the database. Protecting that investment is what database right is for. That is what 77m did and that is why it is extraction not consultation. There may be a grey area between the sort of commercial consultation I refer to and wholesale activity of the kind carried out by 77m but the scale of 77m's actions puts them firmly on the extraction side of the line.’

‘[231] As to consultation, whilst it is correct that mere consultation of a database may not, in itself, be an infringing act, I consider that the Claimants are correct in their assertion that if the consultation involves the permanent or temporary transfer to another medium, as is the case when looking at a database on screen, as opposed to a paper copy database, it does amount to infringement – see the discussion of BHB v William Hill in Laddie, Prescott and Vitoria (supra) at paras 23.66-23.67 supporting the view, which I consider to be correct, that all that was intended to be said by the CJEU in respect of "consultation" in that case was that when an electric database is lawfully consulted (i.e. with the express or implied consent of the database make), there is an implied consent or authorisation to any temporary transfer of the database to allow that lawful consultation, but no more than that.

[232] In my judgment, if Mr O'Connor and Octax were not authorised to do what they did, then what they did went beyond mere consultation of the Slate database, and did amount to extraction subject the Defendant' further arguments.’